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Wednesday, 13 July 2011

Monkey See, Monkey Do, Monkey get Copyright, too?

By now it’s all over the twittersphere, the blogosphere and every other made-up sphere on this green and blue sphere. The monkey that stole a photographer’s camera and got her pictures published in the Daily Mail.

Copyright experts and dilettantes alike are going ape trying to analyze who owns the copyright in these images. Why? Because the Daily Mail put a copyright notice on two of the pictures in its article. Most of the analyses I’ve seen are Americans trying to sort it out under American law, which is typical, but not necessary the best approach here. You see, the monkey is Indonesian. The work was made in Indonesia. The photographer who’s camera was taken and the agency claiming copyright ownership of the photos are British.

The main questions being discussed: Does the monkey get the copyright? If not, does anyone?

Monkey stole the camera from the camera man

Under Indonesian copyright law an author is “a person or some persons.” Miss Monkey is ruled out right there I’m afraid. But what about under British copyright law? Since it’s a British company claiming copyright, any suit is likely to be brought in the UK. Indonesia is a member of Berne and TRIPs, so the photos should be treated the same as UK works under UK copyright law. Unfortunately for the monkey, The UK copyright law also defines author as “the person.” Sorry monkey, it’s not you.

If not, then who?

It appears the monkey, by virtue of not being a “person,” cannot be the author of the photos. (…unless there’s a statute somewhere that makes monkeys a person the way corporations are made a person.) So who gets the copyright?

The photographer / Carters News

If the photographer did own the copyright, it appears that he transferred his rights to Caters News Agency Ltd based on the copyright notices on the newspaper photos.

There is a clause in Article 7 of the Indonesian copyright law that specifies if a work is designed by one person and worked out by another, then the one who designed the work gets the copyright. If the photographer had set up the shot and the monkey had just taken the photo, the photographer would likely have the copyright. But the photographer didn’t design anything here. He just left his camera. The monkey did all the designing in the photos, so this article shouldn’t apply.

Indonesia

Perhaps more useful here is Article 9, “If a legal entity announces that a work has originated from it without mentioning a person as the author, then the legal entity shall be deemed to be the author, unless proven otherwise.” The monkey took the photos in an Indonesian national park. The Indonesian government presumably owns that park and is a legal entity. It would seem that if the Indonesian government claimed it was the copyright owner, then it would be. Except for that “unless proven otherwise bit.” But this leads us to another question, does the park own the monkey?

If not having an author as defined under the copyright law is the same as having an unknown author, then Indonesia owns the copyright under Article 10A of the Indonesian copyright law.

No one

The main claim I’ve seen in the US discussions of who should own the copyright is that no one should; the photos should be in the public domain. And it appears, under UK copyright law, they’re right. - Now, this is the part where, knowing that there are a great deal of very knowledgeable UK copyright practitioners who read this blog and that the author is not one of them, the author asks for forgiveness and clarification should she get anything wrong. -

Under Section 153, the work only qualifies for copyright protection if it meets requirements in several different areas including the area of author. Section 154 outlines the requirements the author must meet in order for the work to receive copyright protection.

Option one, a British citizen. Pretty sure the Indonesian monkey is not a British citizen.

Option two, an individual domiciled or resident in the UK. Monkey lives in Indonesia.

Option three, an individual domiciled or resident in another country to which the relevant provisions of this Part extend. This seems to include any countries to which the UK must extend national treatment with respect to copyright. Since Indonesia is a member of Berne and TRIPS, Indonesia would be one of these countries. It might seem like we need to know if the monkey is an individual, or if it can be domiciled or resident. But, that doesn’t matter because the first part of Section 154 says “if the author was at the material time a qualifying person.” (emphasis added)

So it appears under UK law, the photos are in the public domain. Under Indonesian law, the matter is less clear.

Barrels of Fun

Perhaps more fun than the real story are all the different extra facts you can add to make even more puzzlingly-fun scenarios. What if the monkey belongs to a zoo? Or a person who taught him to take pictures? What if the park or zoo where the monkey lives posts a sign that says the copyright of any photographs taken by animals inside the park or zoo belong to the park or zoo? What if it is not a monkey but one of the gorillas that can speak sign language or otherwise communicate to subjects in a photo how to move?

Personally, I like the position one of my colleagues took: Forget the copyright issue. The monkey should sue for rights of publicity.

8 comments:

AndyJ
said...

As well as being an interesting theoretical discussion (and I agree with the post's conclusions), for one site in the US this is a practical problem as they have been issued with a take-down notice by Caters over the images. It is not clear at the moment if this notice is a hoax or not.

I’m not a lawyer so what do I know, but – I noted in 2003 in my Hands off MY Avatar paper (http://www.ren-reynolds.com/downloads/HandsOffMYavatar.htm) that the argument that virtual objects have some special legal status in virtual of, and only of, the notion that they are created by an Avatar is bogus. This stems from Express Newspapers plc v Liverpool Daily Post & Echo plc [1985] 1 WLR 1089; where the argument was that copyright did not subsist because the author of pools codes was a matching not a human thus fell out side the category of Author as this necessary entailed human.

Now Whitford J defined the role of the computer as instrumental, saying “The computer was no more than a tool” and rejected the defence argument stating “it would be to suggest that, if you write your work with a pen, it is the pen which is the author of the work rather than the person who drives the pen.” In the ruling the author of the work was adjudged to be the programmer – but under work for hire blar blar.

There is a colourable augment that the circumstance set up by the photographer is sufficient to pass the notional instrument test established in the above case.

Dear Andy, Thank you for your comments. And you're right, rights of publicity is a very US centric concept, but my colleague's comment amused me so much I had to include it.As for the US website, if it's the one I think it is based on the rumors I've heard, they'll probably just thumb their nose at the take-down notice anyway. Maybe a court will get to have fun with this after all.

There would have been no problem under the UK's 1956 Copyright Act: section 48 Interpretation:

"Author" in relation to a photograph, means the person who, at the time when the photograph was taken, is the owner of the material on which it is taken."

While s.172 of the 1988 CD&PA mentions that it "restates and amends the law of copyright", the basis for determining the author of a photograph falls into the "amends" category, insofar as Section 9 defines "author" as "the person who creates it".

The author is therefore now defined with reference to who created it and not to who owns the medium on which it was created.

On the face of it, as a monkey is not a "person" in law, then there can be no copyright in any photos taken by the monkey. The 1988 act does not have any "deeming" provisions corresponding to Section 48 of the 1956 act in respect of photographs.

Perhaps those who have asserted ownership of copyright in photos, taken by the monkey on a medium owned by the owner of the camera, are under the impression that the pre-1988 situation still applies?

Or would an assertion of ownership be based on Section 104(4)? "... the person whose name appeared [on copies of the work as published] shall be presumed, unless the contrary is proved, to have been the owner of the copyright at the time of publication." In this case, the newspaper article does explicitly state that the monkey pressed the button, so "the contrary" could be capable of being proved.

There may be a [straw-clutching?] argument that, because the photo was taken using a digital camera, it is of necessity a computer-generated artistic work falling under Section 9(3). Digital cameras use computer chips to perform various functions such as colour balance, exposure, image compression, and formatting the stored image [eg in either JPEG or RAW]. Copyright would then belong to the "person by whom the arrangements necessary for the creation of the work are undertaken" [= he bought a camera and a memory card, both of which are essential for the creation of a digital photograph]. This would be a dangerous precedent to set for digital photography, as copyright in computer-generated works is only 50 years from creation, rather than 70 years from death of author.

The answer, I suspect, is not to be found in statutory interpretation.(Disclosure, I am from the CopyLeft.) I suggest that we construct a view of the facts. The photograph was not "created" by anybody, human or otherwise, since it was a random, unintentional act. I think it no different than a mentally incompetent person in a institution scribbling on a piece of paper. Creation equals intent.

My money is on the rights being owned by the Republic of Indonesia. At the very least, Indonesian law, rather than U.K. law, should be controlling when it is an Indonesian subject that pressed the shutter, as it clearly is, and it was taken in Indonesia.

Under U.S. law, as I understand it, if my guinea pig managed to take a picture of me, I would own the rights to the picture because the law treats pets as chattel, and so the rights would be transferred to the owner. Now, I don't know how Indonesian law treats the topic, but since the macaques were in a national park, and since the government needs to have some kind of ownership of the animals on its land in order to legally protect them, under this doctrine the rights should be transferred to the State. I don't know whether Indonesia has a comparable statute to the U.S. sec. 105, which assigns all works of the U.S. Government to the public domain. Granted, it would be a stretch to call the macaques employees of the government.

I also don't know how Indonesian law vests copyright. In the U.S., copyright vests automatically (as it should in any Berne/TRIPs member state), but that does not necessarily mean that everything is copyrighted. To take this up another level of absurdity, supposing a tree fell on my camera, but as it did, by sheer chance, it dropped an acorn which landed on my camera's shutter button, thereby catching an image of a tree falling from a very unique perspective. Under U.S. law, someone who reprinted the photo could reasonably claim that I don't own the rights to the photo because it was an accident of nature (though I don't know of anything like that in the case law).

I don't know how U.K. law works, but I believe that under U.S. law, the owner of the copyright in international works is determined using the laws of the host country. Once ownership is determined, U.S. law governs when the alleged infringement occurs in the U.S. So if Caters News Agency wants to sue TechDirt over their use of the photo (referenced by AndyJ), they'll have to sue in U.S. courts and either prove U.K. jurisdiction over ownership rules, or prove ownership under Indonesian law. It's anyone's guess what the discovery phase will turn up as to who (if anyone) owns the work, but I think that TechDirt has a very strong fair use case under U.S. law.

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